ACACIA COMMUNICATIONS, INC. Item 1.01. Entry into a Material Definitive Agreement
Background
As previously disclosed, on
As previously disclosed, commencing on
Amended and Restated Merger Agreement
On
The Amended and Restated Merger Agreement provides, subject to its terms and
conditions, for the acquisition of the Company by Parent at a price of
Pursuant to the Amended and Restated Merger Agreement, at the effective time of the Merger (the "Effective Time"):
• each Share that is issued and outstanding immediately prior to the
Effective Time (other than Shares held in the treasury of the Company
or owned by Parent or any direct or indirect wholly owned subsidiary
of the Company or subsidiary of Parent immediately prior to the
Effective Time (all of which will be canceled) and Shares held by
holders who properly exercise their appraisal rights under Delaware
law) will be automatically converted into the right to receive the
Merger Consideration;
• each Company stock option that is outstanding, vested and unexercised
immediately prior to the Effective Time will be canceled and converted
into the right to receive in cash the excess, if any, of the Merger
Consideration over the exercise price per share of such stock option;
provided that, in the event
--------------------------------------------------------------------------------
that the exercise price of any such vested stock option is equal to or
greater than the Merger Consideration, such stock option will be
canceled, without any consideration being payable in respect thereof
and have no further force or effect;
• each Company stock option that is outstanding and unvested immediately
prior to the Effective Time will be canceled and converted into the
right to receive in cash the excess, if any, of the Merger
Consideration over the exercise price per share of such stock option
to the extent, and at the applicable times, such unvested option would
have become vested under the vesting schedule in place for such option
immediately prior to the Effective Time, including under the terms of
the Company's Amended and Restated Severance and Change in Control
Benefits Plan (the "CIC Plan") and any scheduled retention agreement
after giving effect to any applicable employment offer documents
received from Parent; provided that, in the event that the exercise
price of any such unvested stock option is equal to or greater than
the Merger Consideration, such stock option will be canceled, without
any consideration being payable in respect thereof and have no further
force or effect;
• each Company restricted stock unit ("RSU") and performance-based
restricted stock unit ("PSU") that is outstanding and vested and has
not been settled immediately prior to the Effective Time will be
canceled and converted into the right to receive the Merger
Consideration; and
• each RSU and PSU that is outstanding and unvested immediately prior to
the Effective Time will be canceled and converted into the right to
receive the Merger Consideration to the extent, and at the applicable
times, such unvested RSU or PSU would have become vested under the
vesting schedule in place for such RSU or PSU immediately prior to the
Effective Time, including under the terms of the CIC Plan and any
scheduled retention agreement after giving effect to any applicable
employment offer documents received from Parent.
The Amended and Restated Merger Agreement contains customary representations and warranties from both the Company, on the one hand, and Parent and Merger Sub, on the other hand. It also contains customary covenants, including covenants providing for each of the Company and Parent to use its reasonable best efforts to cause the Merger to be consummated, subject to certain limitations, and covenants requiring the Company, among other things, (i) to use commercially reasonable efforts to conduct its business in the ordinary course during the interim period between the execution of the Amended and Restated Merger Agreement and the earlier of the termination thereof and the Effective Time, (ii) not to engage in specified types of transactions during such period and (iii) not to solicit proposals or engage in discussions relating to alternative acquisition proposals or change the recommendation of the Board to the Company's stockholders regarding the Amended and Restated Merger Agreement during such period, in each case except as otherwise permitted by the Amended and Restated Merger Agreement, including in connection with the compliance by the Board with its fiduciary duties under applicable law.
Completion of the Merger is subject to the following mutual closing conditions:
(i) adoption of the Amended and Restated Merger Agreement by the Company's
stockholders, (ii) expiration or termination of applicable waiting periods under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, it being
understood that the existing clearance of the Merger thereunder, to the extent
still in effect, shall be deemed to satisfy such condition, and (iii) the
absence of any order issued by a governmental entity of
The Amended and Restated Merger Agreement may be terminated, subject to the
terms and conditions of the Amended and Restated Merger Agreement: (i) by mutual
written consent of Parent and the Company, (ii) by either the Company or Parent,
if a governmental injunction or other legal restraint in
3
--------------------------------------------------------------------------------
obtained or (iv) by either the Company or Parent upon the other party's uncured material breach of any representation, warranty, covenant or agreement under the . . .
Item 8.01. Other Events. Litigation Update
In connection with the execution of the Amended and Restated Merger Agreement,
each of the Company and Parent agreed to request that the
4
--------------------------------------------------------------------------------
Voting Agreements
On
The foregoing description of the Voting Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Voting Agreement, a copy of which is attached hereto as Exhibit 99.1 and incorporated herein by reference.
Joint Press Release
On
Forward-Looking Statements
This Current Report on Form 8-K includes statements that constitute
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. For this purpose, any statements contained herein
that are not statements of historical fact may be deemed to be forward-looking
statements. Without limiting the foregoing, the words "may," "should," "would,"
"expects," "plans," "anticipates," "could," "intends," "target," "projects,"
"contemplates," "believes," "estimates," "predicts," "potential," "will" or
"continue" or the negative of these terms or other similar expressions are
intended to help you identify forward-looking statements. Forward-looking
statements may include statements regarding the expected benefits to Parent, the
Company and their respective customers from completing the Merger; integration
of the Company's technology into Parent's networking portfolio, accelerating the
trend toward coherent technology and pluggable solutions, supporting Merger
Sub's current merchant business, including the Company's existing customers and
new customers; and the expected completion of the Merger. The forward-looking
statements in this Current Report on Form 8-K are only predictions. The events
and circumstances reflected in the forward-looking statements may not be
achieved or occur and actual results could differ materially from those
projected in the forward-looking statements. The Company has based these
forward-looking statements largely on its current expectations and projections
about future events and trends that the Company believes may affect its
business, financial condition and results of operations. These forward-looking
statements speak only as of the date of this Current Report on Form 8-K and are
subject to a number of risks, uncertainties and assumptions including, without
limitation: the risk that the proposed Merger may not be completed in a timely
manner, or at all, which may adversely affect the Company's business and the
price of its common stock; obtaining the approval of the Company's stockholders
of the Merger or that other conditions to the closing of the Merger may not be
satisfied; the potential impacts on the Company's business, reputation,
relationships, results of operations, cash flows and financial condition as a
result of the Merger, uncertainty with respect to the Merger or litigation
relating to the Merger; litigation against the Company or its directors or
officers related to the Merger, or the Amended and Restated Merger Agreement and
any adverse outcome of such litigation; the effects of announcements relating to
the Merger and the Amended and Restated Merger Agreement; the costs, fees,
expenses and other charges related to the Merger, including with respect to
related litigation; risks that the Merger may disrupt the Company's plans and
business operations; risks that the proposed Merger and litigation relating to
the Merger may divert management's attention from the Company's ongoing business
operations, disrupt the Company's operations and result in potential
difficulties in the Company's ability to attract and retain employees; the
occurrence of any event, change or other circumstances that could give rise to
the termination of the Amended and Restated Merger Agreement; general economic
conditions; the ability of Parent to successfully integrate the Company's market
opportunities, technology, personnel and operations and to achieve expected
benefits; and other risks set forth under the caption "Risk Factors" in the
Company's public reports filed with the
5
--------------------------------------------------------------------------------
rely on these forward-looking statements as indicative of future events. The Company assumes no obligation to update any forward-looking statements contained in this Current Report on Form 8-K as a result of new information, future events or otherwise.
Additional Information and Where to Find It
In connection with the proposed Merger and required stockholder approval, the
Company will file with the
The Company and its executive officers and directors may be deemed to be
participants in the solicitation of proxies from the Company's stockholders with
respect to the acquisition. Information about the Company's directors and
executive officers, including their ownership of Company securities, is set
forth in the Company's annual report on Form 10-K filed with the
In addition, Parent and its executive officers and directors may be deemed to
have participated in the solicitation of proxies from the Company's stockholders
in favor of the approval of the transaction. Information concerning Parent's
directors and executive officers is set forth in Parent's proxy statement for
its 2020 Annual Meeting of Shareholders, which was filed with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number Description
2.1* Amended and Restated Agreement and Plan of Merger, dated as
of January 14, 2021 , by and among the Company, Parent, and
Merger Sub.
99.1 Form of Voting Agreement
99.2 Joint press release issued by Parent and the Company on
January 14, 2021 .
104 Cover Page Interactive Data File (formatted as Inline XBRL)
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company hereby undertakes to furnish supplemental copies of any of the omitted
schedules upon request by the
request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for
any schedules so furnished.
6
--------------------------------------------------------------------------------
© Edgar Online, source
